Justice Retired

One evening last week Willis Van Devanter sat in his apartment at No. 2101 Connecticut Avenue, Washington, D. C. engaged in literary composition. The fruit of his evening's work was one sentence, containing over 100 words. It began: "Having held my commission as an Associate Justice of the Supreme Court of the U. S. and served in that court for 26 years, and having come to be 78 years of age. . . ."

Twenty-six years on the Court is a long time, longer than that of any other present Justice but not so long as the 45 years that John T. Suter, A. P. newshawk, has been covering the Supreme Court. Next morning Oldster Van Devanter called up Oldster Suter, got him out of a sickbed, asked him to come over. Mr. Van Devanter then took up his composition, prefixed it with "My dear Mr. President," appended "I have the honor to remain very respectfully yours," called a messenger, and dispatched it to the White House. When Mr. Suter arrived the Justice chatted with him amiably for a few minutes, handed him a copy of the letter, told him it could be released as soon as the original had reached the White House. Newshawk Suter's eyes popped. The letter announced Mr. Van Devanter's retirement on June 2 (day after the Supreme Court completes its term). As a parting kindness one oldster was giving another oldster a scoop.

Franklin Roosevelt was having breakfast in bed and newshawks were already clamoring at the White House offices when Valet McDuffie brought him Mr. Van Devanter's message. If he made a grimace, only Valet McDuffie knows. He called for a piece of paper and scribbled an answer. "May I as one who has had the privilege of knowing you for many years, extend to you every good wish. Before you leave Washington for the summer it would give me great personal pleasure if you would come in to see me"--polite, noncommittal, frigid. Unlike most similar letters, it was not addressed to "Dear Willis" but to "My dear Mr. Justice Van Devanter."

Odds. Three months ago the odds on the President's proposal to enlarge the Supreme Court stood at 15 to 9, figured in Justices, not dollars. Last week few people would give better odds than 11 to 9, and some figured 9 to 9. Washington's political wiseacres, who at first counted on the power of the New Deal's political machine to whip reluctant Senators into line, the persuasion of Franklin Roosevelt's irresistible tongue to swing public opinion, realized one thing which they had failed to take into account: the ability of nine old men immured in a neoclassic temple to outmaneuver the ablest politician in the U. S. Yet by accident or design the Supreme Court had twice done so.

The Court's first tactical victory was in upholding the constitutionality of the State of Washington's minimum wage law for women and of the National Labor Relations Act. Associate Justice Roberts and Chief Justice Hughes, who made those decisions by aligning themselves with the Court's liberals, were credited with damping the enthusiasm of labor for a Court change. When the Court last week upheld the Social Security Act (see p. 16), it simply added one more reason for believing such a change unnecessary.

In executing the Court's second tactical maneuver Justice Van Devanter was credited last week with an assist from Senators Borah and Wheeler. For a long time Senator Borah and the Justice have been neighbors. Forty-six years ago when young Lawyer Borah went to Idaho, young Lawyer Van Devanter, just across the border in Wyoming, had already retired as chief justice of the State supreme court and was about to become chairman of the Republican State Committee. Today, Borah occupies apartment 77 at No. 2101 Connecticut Avenue and Oldster Van Devanter occupies apartment 47, three floors below. When they meet in the elevator, they say "Hello Bill" and "Hello Willis."

For two years Justice Van Devanter had been preparing to retire, had provided himself with a 778-acre farm in Maryland for that purpose, but lately opponents of the President's Court Plan had urged him not to quit. According to the account generally accepted in Washington last week, he finally appealed to Senator Borah for approval. Senator Borah consulted Senator Wheeler, and they urged him to do as he wished. Mr. Van Devanter hoped that Justice Brandeis, who is 80 and belongs to the opposite, liberal wing of the Court, would retire at the same time, but Mr. Brandeis was adamant. He would not retire while the Court was under fire. So Mr. Van Devanter retired single-handed,* giving the President opportunity to appoint a liberal in his place. Thus he pulled a second prop from beneath the President's position, for liberals in Congress felt there was still less need for enlarging the Court to insure a liberal majority. Result: the one promising chance of the President's getting his plan approved dwindled until the odds were slightly against it and there was even doubt last week whether a bill to let him appoint two additional Justices could be passed.

Three More Blows. If the President's aim was to get conservative oldsters off the Court, the Van Devanter retirement was a partial success, but there were reasons for believing that his chit from the Justice gave a sour taste to his breakfast. Every President in his second term finds it difficult to control Congress, and by forcing Congress to pass his Court bill, he could have shown Congressmen that he still had the upper hand. Usually a master of compromise, he had refused all compromise on the Court issue as if determined to force a showdown at the beginning of his second term. From this standpoint the Van Devanter resignation was distinctly bad news.

Still worse was the news emanating the same day from the Senate Judiciary Committee. It voted an adverse report on the bill 10-to-8. It also voted on a compromise proposed by Senator Logan of Kentucky to allow the President to increase the Court temporarily, if Justices over 75 do not retire. Chairman Ashurst and other Administration supporters had taken a strong stand against compromise, but with only one exception (Senator Pittman) they voted for the compromise. Yet it also was defeated, 10-to-8, for only one of the opponents (New Mexico's Hatch) went over to the compromise. So far as the committee was concerned the President had lost thrice, once on his bill, once when his supporters voted to compromise, and again when even compromise was rejected.

Who But Joe? For the moment, Washington's chief interest centred on the question of who should succeed Justice Van Devanter. Immediately dopesters trotted out the names they have been considering ever since Court enlargement was proposed: James McCauley Landis of SEC, Donald Richberg, Solicitor General Stanley Reed, Felix Frankfurter and many another. Within 24 hours, however, one name had leaped to a prominence which dwarfed all other prospects, that of Senator Joseph Taylor Robinson of Arkansas. The President is supposed to have assured him several times over that he could have the first vacancy on the Court. Senators, not only Democrats but Republicans, were practically unanimous in urging his appointment. Senators Byrnes and Harrison went to the White House to put in a good word for him. Senator Borah wrote the President a letter on his behalf. The U. S. Senate, "Greatest Club in the World." seemed unanimously to feel that for long loyalty to the New Deal, its Member Joe Robinson should be rewarded.

Unhappily this was not all sweet music to the New Dealers. First, Mr. Robinson is 64, four years older than the President's arbitrary age limit for judicial appointees. He would not be eligible to retire with pay until he had served ten years and reached 74. Having made a fuss about judges retiring at 70, Franklin Roosevelt would make himself look foolish if he appointed Senator Robinson the first time he had an opportunity to name a Justice to the Supreme Court. Second, as New Dealers well know, Joe Robinson has on many occasions been a New Dealer more out of Party loyalty than conviction. His pre-New Deal record shows him to be at heart a conservative, not at all the kind of dyed-in-the-fleece New Dealer that the Administration would feel sure of on the bench.

If the President had not promised, Joe Robinson's chances might have been slim. But Senators are touchy about past examples of the changeability of the Roosevelt mind, and among good politicians a promise is a sacred thing. There was talk in the cloakrooms that if Joe Robinson were not appointed, no one else would be confirmed. If this was a bit fantastic, there remained the likelihood that by failure to appoint Joe Robinson, the President would stir up a bigger nest of hornets than he had by his Supreme Court bill.

At a White House press conference a newshawk laughingly asked whether the President was going to "confirm" the Senate's "nomination" for the Supreme Court. Franklin Roosevelt grimaced, declared that all reports of whom he would nominate should be labeled "Surmise No. 23." Meanwhile Senators began to cast about for a majority leader to succeed Joe Robinson if he became Justice. The President was understood to favor Alben William Barkley of Kentucky, now assistant leader, who sees eye to eye with the New Deal. Senators were much more inclined to favor James Francis Byrnes of South Carolina, who is more popular although he has differed with the New Deal on occasion. And this dialog was widely quoted:

Q. "Who will be the President's leader?" A. "Maybe the Senators will elect their own leader."

Franklin Roosevelt perhaps hoped that Joe Robinson might be kept out of the Supreme Court by insisting on the continued need for him as majority leader in the Senate.

*Chief Justice Hughes and Justice Brandeis allowed it to be announced that they had no present intention of retiring. A letter written by Justice McReynolds fortnight ago to a questioner saying, "You may disregard all rumors of my resignation," was also published. Since Justices Roberts, Stone and Cardozo are not yet 70, are therefore ineligible to retire with pay, the only other likely early retirers are Conservatives Sutherland and Butler.

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